28 CFR Part 65 (2003), Emergency Federal Law Enforcement Assitance
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
PART 65--EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE--Table of Contents
Subpart A--Eligible Applicants
Sec. 65.1 General.
This subject describes who may apply for emergency Federal law
enforcement assistance under the Justice Assistance Act of 1984.
Sec. 65.2 State Government. In the event that a law enforcement emergency exists throughout a state or
part of a state, a state (on behalf of itself or a local unit of government) may submit an application to the
Attorney General, for emergency Federal law enforcement assistance. This aplication is to be submitted
by the chief executive officer of the state, in writing, on Standard Form 424, and in accordance with these
regulations.
Subpart B--Allocation of Funds and Other Assistance
Sec. 65.10 Fund availability. For the previous fiscal year (FY `85), $800,000 was appropriated for
emergency Federal law enforcement assistance for the entire country. In FY '86, $1.5 million has been
requested. The FY '86 request has not yet been appropriated and is not currently available. The form and
extent of assistance provided will be determined by the nature and scope of the emergency presented; but,
in any event, no fund award may exceed the amount ultimately appropriated.
Sec. 65.11 Limitations on fund and other assistance use. (a) Land acquisition. No funds shall be used for
the purpose of land acquisition. (b) Non-supplantation. No funds shall be used to supplant state or local
funds that would otherwise be made available for such purposes. (c) Civil justice. No funds or other
assistance shall be used with respect to civil justice matters except to the extent that such civil justice
matters bear directly and substantially upon criminal justice matters or are inextricably intertwined with
criminal justice matters. [[Page 163]] (d) Federal law enforcement personnel. Nothing in the enabling
legislation authorizes the use of Federal law enforcement personnel to investigate violations of criminal
law other than violations with respect to which investigation is authorized by other provisions of law.
(section 609O(a), of the Act). (e) Direction, supervision, control. Nothing in the enabling legislation shall
be construed to authorize the Attorney General or the Federal law enforcement community to exercise
any direction, supervision, or control over any police force or other criminal justice agency of an
applicant for Federal law enforcement assistance. (section 609O(b), of the Act).
Sec. 65.12 Other assistance. In accordance with the purposes and limitations of this subdivision, members
of the Federal law enforcement community may provide needed assistance in the form of equipment,
training, intelligence information, and personnel. The application may include requests for assistance of
this nature.
Subpart C--Purpose of Emergency Federal Law Enforcement Assistance Sec. 65.20
General. The purpose of the Act is to assist state and/or local units of government which are experiencing
law enforcement emergencies to respond to those emergencies through the provision of Federal law
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enforcement assistance. The authority and responsibility for implementation of this section is vested in
the Attorney General of the United States.
Sec. 65.21 Purpose of assistance. The purpose of emergency Federal law enforcement assistance is to
provide necessary assistance to (and through) a state government to provide an adequate response to an
uncommon situation which requires law enforcement, which is or threatens to become of serious or
epidemic proportions, and with respect to which state and local resources are inadequate to protect the
lives and property of citizens, or to enforce the criminal law.
Sec. 65.22 Exclusions. Excluded from the situations for which this assistance is intended are: (a) The
perceived need for planning or other activities related to crowd control for general public safety projects;
and, (b) A situation requiring the enforcement of laws associated with scheduled public events, including
political conventions and sports events.
Subpart D--Application for Assistance
Sec. 65.30 General. The Act requires that applications be submitted in writing, by the chief executive
officer of a state, on Standard Form 424, in accordance with these regulations.
Sec. 65.31 Application content. The Act identifies six factors which the Attorney General will consider in
approving or disapproving an application, and includes administrative requirements to ensure appropriate
use of Federal assistance. Therefore, each application must be in writing and must include the following:
(a) Problem. A description of the nature and extent of the law enforcement emergency, including the
specific identification and description of the political and geographical subdivision(s) wherein the
emergency exists; (b) Cause. A description of the situation or extraordinary circumstances which
produced such emergency; (c) Resources. A description of the state and local criminal justice resources
available to address the emergency, and a discussion of why and to what degree they are insufficient; (d)
Assistance requested. A specific statement of the funds, equipment, training, intelligence information, or
personnel requested, and a description of their intended use; (e) Other assistance. The identification of
any other assistance the state or appropriate unit of government has received, or could receive, under any
provision of the Act; and, (f) Other requirements. Assurance of compliance with other requirements of the
Act, detailed in other parts of these [[Page 164]] regulations, including: Nonsupplantation;
nondiscrimination; confidentiality of information; prohibition against land acquisition; recordkeeping and
audit; limitation on civil justice matters.
Subpart E--Submission and Review of Applications
Sec. 65.40 General. This subpart describes the process and criteria for the Attorney General's review and
approval or disapproval of state applications. The original application, on Standard Form 424, signed by
the chief executive officer of the state should be submitted directly to the Attorney General, U.S.
Department of Justice, Washington, DC 20503. One copy of the application should be sent to the
Director, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice,
Washington, DC 20531. [67 FR 7270, Feb. 19, 2002]
Sec. 65.41 Review of State applications. (a) Review criteria. The Act provides the basis for review and
approval or disapproval of state applications. Federal law enforcement assistance may be provided if such
assistance is necessary to provide an adequate response to a law enforcement emergency. In determining
whether to approve or disapprove an application for assistance under this section, the Attorney General
shall consider: (1) The nature and extent of such emergency throughout a state or in any part of a state; (2)
The situation or extraordinary circumstances which produced such emergency; (3) The availability of
state and local criminal justice resources to resolve the problem; (4) The cost associated with the
increased Federal presence; (5) The need to avoid unnecessary Federal involvement and intervention in
matters primarily of state and local concern; and, (6) Any assistance which the state or other appropriate
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unit of government has received, or could receive, under any provision of title I of the Omnibus Crime
Control and Safe Streets Act of 1968. (b) Review process. (1) The Attorney General shall consult with the
Assistant Attorney General, Office of Justice Programs, and the Director, Bureau of Justice Assistance, on
requests for grant assistance. (2) All requests for assistance of the Federal law enforcement community
(e.g., equipment, training, information, or personnel) shall be reviewed by the Attorney General in
consultation with appropriate members of the Federal law enforcement community, including the United
States Attorney(s) in the affected District(s). Such requests will be subject to statutory restrictions,
including section 609O on Federal agency activities. (3) The Attorney General will approve or disapprove
each application, submitted in accordance with these regulations, no later than ten (10) days after receipt.
Subpart F--Additional Requirements
Sec. 65.50 General. This subpart sets forth additional requirements under the Justice Assistance Act.
Applicants for assistance must assure compliance with each of these requirements.
Sec. 65.51 Recordkeeping. (a) The state must assure that it adheres to the recordkeeping requirements
enumerated in OMB Circulars, Number A-102 and Number A-128. This requirement extends to
participating units of local government, in that they are viewed as the state's subgrantees. (b) The
Attorney General and the Comptroller of the United States shall have access, for the purpose of audit and
examination, to any books, documents, and records of recipients of Federal law enforcement assistance
provided under this subdivision which, in the opinion of the Attorney General or the Comptroller General,
are related to the receipt or use of such assistance.
Sec. 65.52 Civil rights. The Act provides that ``no person in any state shall on the grounds of race, color,
religion, national origin, or sex [[Page 165]] be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under or denied employment in connection with any programs or
activity funded in whole or in part with funds made available under this title.'' Recipients of funds under
the Act are also subject to the provisions of title VI of the Civil Rights Act of 1964; section 504 of the
Rehabilitation Act of 1973, as amended; title IX of the Education Amendments of 1972; the Age
Discrimination Act of 1975; and the Department of Justice Non-Discrimination Regulations 28 CFR part
42, subparts C, D, E, and G.
Sec. 65.53 Confidentiality of information. Section 812 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (as amended and implemented by 28 CFR part 20) shall apply with respect to
information, including criminal history information and criminal intelligence systems operating with the
support of Federal law enforcement assistance.
Subpart G--Repayment of Funds
Sec. 65.60 Repayment of funds. (a) If Federal law enforcement assistance provided under this subdivision
is used by the recipient of such assistance in violation of these regulations, or for any purpose other than
the purpose for which it is provided, then such recipient shall promptly repay to the Attorney General an
amount equal to the value of such assistance. (b) The Attorney General may bring a civil action in an
appropriate United States District Court to recover any amount authorized to be repaid under law.
Subpart H--Definitions
Sec. 65.70 Definitions. (a) Law enforcement emergency. The term law enforcement emergency is defined
by the Act as an uncommon situation which requires law enforcement, which is or threatens to become of
serious or epidemic proportions, and with respect to which state and local resources are inadequate to
protect the lives and property of citizens, or to enforce the criminal law. The Act specifically excludes the
following situations when defining ``law enforcement emergency'': (1) The perceived need for planning
or other activities related to crowd control for general public safety projects; and, (2) A situation requiring
the enforcement of laws associated with scheduled public events, including political convention and
sports events. (b) Federal law enforcement assistance. The term Federal law enforcement assistance is
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defined by the Act to mean funds, equipment, training, intelligence information, and personnel. (c)
Federal law enforcement community. The term Federal law enforcement community is defined by the Act
as the heads of the following departments or agencies: (1) Federal Bureau of Investigation; (2) Drug
Enforcement Administration; (3) Criminal Division of the Department of Justice; (4) Internal Revenue
Service; (5) Customs Service; (6) Immigration and Naturalization Service; (7) U.S. Marshals Service; (8)
National Park Service; (9) U.S. Postal Service; (10) Secret Service; (11) U.S. Coast Guard; (12) Bureau of
Alcohol, Tobacco, and Firearms; and, (13) Other Federal agencies with specific statutory authority to
investigate violations of Federal criminal law. (d) State. The term state is defined by the Act as any state
of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Trust Territory of the Pacific Islands, or the Commonwealth of the Northern
Mariana Islands.
Subpart I--Immigration Emergency Fund
Sec. 65.80 General. Source: Order No. 1892-94, 59 FR 30522, June 14, 1994, unless otherwise noted.
[[Page 166]] The regulations of this subpart set forth procedures for implementing section 404(b) of the
Immigration and Nationality Act (``INA''), 8 U.S.C. 1101 note, by providing for Presidential
determinations of the existence of an immigration emergency, and for payments from the Immigration
Emergency Fund or other funding available for such purposes, to State and local governments for
assistance provided in meeting an immigration emergency. The regulations of this subpart also establish
procedures by which the Attorney General may draw upon the Immigration Emergency Fund, without a
Presidential determination that an immigration emergency exists, to provide funding to State and local
governments for assistance provided as required by the Attorney General in certain specified
circumstances. [Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 2601-2002,
67 FR 48359, July 24, 2002]
Sec. 65.81 General definitions. As used in this part: Assistance means any actions taken by a State or
local government directly relating to aiding the Attorney General in the administration of the immigration
laws of the United States and in meeting urgent demands arising from the presence of aliens in the State
or local government's jurisdiction, when such actions are taken to assist in meeting an immigration
emergency or under any of the circumstances specified in section 404(b)(2)(A) of the INA. Assistance
may include, but need not be limited to, the provision of large shelter facilities for the housing and
screening of aliens, and, in connection with these activities, the provision of such basic necessities as
food, water clothing, and health care. Immigration emergency means an actual or imminent influx of
aliens which either is of such magnitude or exhibits such other characteristics that effective administration
of the immigration laws of the United States is beyond the existing capabilities of the Immigration and
Naturalization Service (``INS'') in the affected area or areas. Characteristics of an influx of aliens, other
than magnitude, which may be considered in determining whether an immigration emergency exists
include: the likelihood of continued growth in the magnitude of the influx; an apparent connection
between the influx and increases in criminal activity; the actual or imminent imposition of unusual and
overwhelming demands on law enforcement agencies; and other similar characteristics. Other
circumstances means a situation that, as determined by the Attorney General, requires the resources of a
State or local government to ensure the proper administration of the immigration laws of the United States
or to meet urgent demands arising from the presence of aliens in a State or local government's
jurisdiction.
Sec. 65.82 Procedure for requesting a Presidential determination of an immigration emergency. (a) The
President may make a determination concerning the existence of an immigration emergency after review
of a request from either the Attorney General of the United States or the chief executive of a State or local
government. Such a request shall include a description of the facts believed to constitute an immigration
emergency and the types of assistance needed to meet that emergency. Except when a request is made by
the Attorney General, the requestor shall file the original application with the Office of the President and
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shall file copies of the application with the Attorney General and with the Commissioner of INS. (b) If the
President determines that an immigration emergency exists, the President shall certify that fact to the
Judiciary Committees of the House of Representatives and of the Senate.
Sec. 65.83 Assistance required by the Attorney General. The Attorney General may request assistance
from a State or local government in the administration of the immigration laws of the United States or in
meeting urgent demands where the need for assistance arises because of the presence of aliens in that
State or local jurisdiction, and may provide funding to a State or local government relating to such
assistance from the [[Page 167]] Immigration Emergency Fund or other funding available for such
purposes, without a Presidential determination of an immigration emergency, in any of the following
circumstances: (a) An INS district director certifies to the Commissioner of INS, who shall, in turn,
certify to the Attorney General, that the number of asylum applications filed in that INS district during the
relevant calendar quarter exceeds by at least 1,000 the number of such applications filed in that district
during the preceding calendar quarter. For purposes of this paragraph, providing parole at a point of entry
in a district shall be deemed to constitute an application for asylum in the district. (b) The Attorney
General determines that there exist circumstances involving the administration of the immigration laws of
the United States that endanger the lives, property, safety, or welfare of the residents of a State or locality.
(c) The Attorney General determines that there exist any other circumstances, as defined in Sec. 65.81 of
this subpart, such that it is appropriate to seek assistance from a State or local government in
administering the immigration laws of the United States or in meeting urgent demands arising from the
presence of aliens in a State or local jurisdiction. (d)(1) If, in making a determination pursuant to
paragraph (b) or (c) of this section, the Attorney General also determines that the situation involves an
actual or imminent mass influx of aliens arriving off the coast or near a land border of the United States
and presents urgent circumstances requiring an immediate Federal response, the Attorney General will
formally declare that a mass influx of aliens is imminent or occurring. The determination that a mass
influx of aliens is imminent or occurring will be based on the factors set forth in the definitions contained
in Sec. 65.81 of this subpart. The Attorney General will determine and define the time period that
encompasses a mass influx of aliens by declaring when such an event begins and when it ends. The
Attorney General will initially define the geographic boundaries where the mass influx of aliens is
imminent or occurring. (2) Based on evolving developments in the scope of the event, the Commissioner
of the INS may, as necessary, amend and redefine the geographic area defined by the Attorney General to
expand or decrease the boundaries. This authority shall not be further delegated. (3) The Attorney
General, pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), may authorize any State or local
law enforcement officer to perform or exercise any of the powers, privileges, or duties conferred or
imposed by the Act, or regulations issued thereunder, upon officers or employees of the Service. Such
authorization must be with the consent of the head of the department, agency, or establishment under
whose jurisdiction the officer is serving. (4) Authorization for State or local law enforcement officers to
exercise Federal immigration law enforcement authority for transporting or guarding aliens in custody
may be exercised as necessary beyond the defined geographic boundaries where the mass influx of aliens
is imminent or occurring. Otherwise, Federal immigration law enforcement authority to be exercised by
State or local law enforcement officers will be authorized only within the defined geographic boundaries
where the mass influx of aliens is imminent or occurring. (5) State or local law enforcement officers will
be authorized to exercise Federal immigration law enforcement authority only during the time period
prescribed by the Attorney General in conjunction with the initiation and termination of a declared mass
influx of aliens. [Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 2601-2002,
67 FR 48360, July 24, 2002]
Sec. 65.84 Procedures for the Attorney General when seeking State or local assistance. (a)(1) When the
Attorney General determines to seek assistance from a State or local government under Sec. 65.83 of this
subpart, or when the President has determined that an immigration emergency exists, the Attorney
General shall negotiate the terms and conditions of that assistance with the [[Page 168]] State or local
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government. The Attorney General shall then execute a written agreement with appropriate State or local
officials, which sets forth the terms and conditions of the assistance, including funding. Such written
agreements can be reimbursement agreements, grants, or cooperative agreements. (2) The Commissioner
may execute written contingency agreements regarding assistance under Sec. 65.83(d) of this subpart in
advance of the Attorney General's determination pursuant to that section. However, such advance
agreements shall not authorize State or local law enforcement officers to perform any functions of Service
officers or employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until the Attorney General
has made the necessary determinations and authorizes such performance. Any such advance agreements
shall contain precise activation procedures. (3) Written agreements regarding assistance under Sec.
65.83(d) of this subpart, including contingency agreements, shall include the following minimum
requirements: (i) A statement of the powers, privileges, or duties that State or local law enforcement
officers will be authorized to exercise and the conditions under which they may be exercised; (ii) A
statement of the types of assistance by State or local law enforcement officers for which the Attorney
General shall be responsible for reimbursing the relevant parties in accordance with the procedures set
forth in paragraph (b) of this section; (iii) A statement that the relevant State or local law enforcement
officers are not authorized to exercise any functions of Service officers or employees under section
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until the Attorney General has made a determination pursuant
to that section and authorizes such performance; (iv) A requirement that State or local law enforcement
officers cannot exercise any authorized functions of Service officers or employees under section 103(a)(8)
of the INA, 8 U.S.C. 1103(a)(8), until they have successfully completed and been certified in a Serviceprescribed course of instruction in basic immigration law, immigration law enforcement fundamentals
and procedures, civil rights law, and sensitivity and cultural awareness issues; (v) A description of the
duration of the written agreement, and of the authority the Attorney General will confer upon State or
local law enforcement officers pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), along with a
provision for amending, terminating, or extending the duration of the written agreement, or for
terminating or amending the authority to be conferred pursuant to section 103(a)(8) of the INA, 8 U.S.C.
1103(a)(8); (vi) A requirement that the exercise of any Service officer functions by State or local law
enforcement officers pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be at the direction of
the Service; (vii) A requirement that any State or local law enforcement officer performing Service officer
or employee functions pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), must adhere to the
policies and standards set forth during the training, including applicable immigration law enforcement
standards and procedures, civil rights law, and sensitivity and cultural awareness issues; (viii) A statement
that the authority to perform Service officer or employee functions pursuant to section 103(a)(8) of the
INA, 8 U.S.C. 1103(a)(8), does not abrogate or abridge constitutional or civil rights protections; (ix) A
requirement that a complaint reporting and resolution procedure for allegations of misconduct or
wrongdoing by State or local officers designated, or activities undertaken, pursuant to section 103(a)(8) of
the INA, 8 U.S.C. 1103(a)(8), be in place; (x) A requirement that a mechanism to record and monitor
complaints regarding the immigration enforcement activities of State or local law enforcement officers
authorized to enforce immigration laws be in place; (xi) A listing by position (title and name when
available) of the Service officers authorized to provide operational direction to State or local law
enforcement officers assisting in a Federal response pursuant to section 103(a)(8) of the INA, 8 U.S.C.
1103(a)(8); [[Page 169]] (xii) A requirement that a State or local law enforcement agency maintain
records of operational expenditures incurred as a result of supporting the Federal response to a mass
influx of aliens; (xiii) Provisions concerning State or local law enforcement officer use of Federal
property or facilities, if any; (xiv) A requirement that any department, agency, or establishment whose
State or local law enforcement officer is performing Service officer or employee functions shall cooperate
fully in any Federal investigation related to allegations of misconduct or wrongdoing in conjunction with
such functions, or to the written agreement; and (xv) A procedure by which the appropriate law
enforcement agency, department, or establishment will be notified that the Attorney General has made a
determination under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), to authorize State or local law
enforcement officers to exercise Federal immigration enforcement authority under the provisions of the
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respective agreements. (4) The Attorney General may abbreviate or waive any of the training required
pursuant to a written agreement regarding assistance under Sec. 65.83(d) of this chapter, including
contingency agreements, in the event that the number of State or local law enforcement officers available
to respond in an expeditious manner to urgent and quickly developing events during a declared mass
influx of aliens is insufficient to protect public safety, public health, or national security. Such officers
still would be required to adhere to applicable policies and standards of the Immigration and
Naturalization Service. The decision to abbreviate or waive these training requirements is at the sole
discretion of the Attorney General. (b) A reimbursement agreement shall contain the procedures under
which the State or local government is to obtain reimbursement for its assistance. A reimbursement
agreement shall include the title of the official to whom claims are to be submitted, the intervals at which
claims are to be submitted, a description of the supporting documentation to be submitted, and any
limitations on the total amount of reimbursement that will be provided. Grants and cooperative
agreements shall be made and administered in accordance with the uniform procedures in part 66 of this
title. (c) In exigent circumstances, the Attorney General may agree to provide funding to a State or local
government without a written agreement. A reimbursement agreement, grant, or cooperative agreement
conforming to the specifications in this section shall be reduced to writing as soon as practicable. [Order
No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 2601-2002, 67 FR 48360, July 24,
2002; Order No. 2659-2003, 68 FR 8822, Feb. 26, 2003]
Sec. 65.85 Procedures for State or local governments applying for funding. (a) In the event that the chief
executive of a State or local government determines that any of the circumstances set forth in Sec. 65.83
of this subpart exists, he or she may pursue the procedures in this section to submit to the Attorney
General an application for a reimbursement agreement, grant, or cooperative agreement as described in
Sec. 65.84 of this subpart. (b) The Department strongly encourages chief executives of States and local
governments, if possible, to consult informally with the Attorney General and the Commissioner of INS
prior to submitting a formal application. This informal consultation is intended to facilitate discussion of
the nature of the assistance to be provided by the State or local government, the requirements of the
Attorney General, if any, for such assistance, the costs associated with such assistance, and the
Department's preliminary views on the appropriateness of the proposed funding. (c) The chief executive
of a State or local government shall submit an application in writing to the Attorney General, and shall
file a copy with the Commissioner of INS. The application shall set forth in detail the following
information: (1) The name of the jurisdiction requesting reimbursement; (2) All facts supporting the
application; [[Page 170]] (3) The nature of the assistance which the State or local government has
provided or will provide, as required by the Attorney General, for which funding is requested; (4) The
dollar amount of the funding sought; (5) A justification for the amount of funding being sought; (6) The
expected duration of the conditions requiring State or local assistance; (7) Information about whether
funding is sought for past costs or for future costs; (8) The name, address, and telephone number of a
contact person from the requesting jurisdiction. (d) If the Attorney General determines that the assistance
for which funding is sought under paragraph (c) of this section is appropriate under the standards of this
subpart, the Attorney General may enter into a reimbursement or cooperative agreement or may make a
grant in the same manner as if the assistance had been requested by the Attorney General as described
under Sec. 65.84 of this subpart. (e) The Attorney General will consider all applications from State or
local governments until the Attorney General has obligated funding available for such purposes as
determined by the Attorney General. The Attorney General will make a decision with respect to any
application submitted under this section that contains the information described in paragraph (c) of this
section within 15 calendar days of such application. (f) In exigent circumstances, the Attorney General
may waive the requirements of this section concerning the form, contents, and order of consideration of
applications, including the requirement in paragraph (c) of this section that applications be submitted in
writing. [Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 2601-2002, 67 FR
48361, July 24, 2002]
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